JAWAID NAWAZ KHAN GANDAPUR, J.---The State has appealed against the judgment of Additional Sessions Judge, Mardan (Mr. Mujtaba Ahmad) dated 25-6-1983 by which he acquitted Qaiser son of Sikandar, resident of Village Ghari Daulat Zai, Police Station Shahbaz Garh, Tehsil and District Mardan. Qaiser was charged under section 302, P.P.C. For having killed Ibadullah son of Mohibullah, resident of Garhi Kapura, Mardan with a pistol on 14-6-1985 at 10 a.m. In his cloth shop.
2. The prosecution case, as disclosed during the trial, in brief is as under:---
(a) The deceased was running a shop and used to deal in cloth. This shop was situated in the Bazar of Village Garhi Daulatzai while Sahibzada (P.W.9) had set up a shop of general store nearby his shop. A.I Gohar (P.W.10) was sunning the business of Manyari (Karyana) in 'Bazar Shahidan, Mardan and had come to the deceased shop to pay him money, as requested by him, for purchase of cloth.
(b) At about 10 a.m. On the fateful day, i.e. 16-4-1985, both the above--mentioned witnesses were present in the shop of the deceased. In the meantime, accused Qaiser came there and asked for cloth of two suits from the deceased. The deceased cut two suits and put the same in a plastic bag. On demand of the price/money therefor, the accused stated that he would pay him the price later on. The deceased expressed his inability to give the cloth on credit. As a result of this the accused, suddenly, pulled out a pistol from the fold of his trousers and fired a shot therefrom, hitting the deceased who was sitting on a chair. The deceased fell on the ground. Thereafter, the accused decamped from the scene of occurrence.
(c) Quite a few persons were attracted to the spot and with the help of some of them, the two witnesses mentioned above placed the deceased, in injured condition, on a cot and then took him in a Datsun to the Civil Hospital, Mardan for medical treatment/examination. On reaching the hospital at 10-40 a.m., the deceased was examined by Dr. Muhammad Tahir (P.W.11) who found fire-arm inlet wound 1/2 c.m. In diametre, with charring marks and corresponding exit wound 1 c.m.
In diametre. The deceased was found to be in a state of shock, was pulseless and his blood pressure could not be recorded, because of the said injury which had endangered his life. The probable duration of the injury was stated to be within 15 minutes to half an hour. Consequently, the deceased, after X-ray examination, was admitted in the Surgical Ward, where he expired due to the said injury to heart and kidney at 10-40 a.m. And accordingly autopsy was conducted by the same doctor in the mortuary, on the identification of Mumtaz (P.W.2).
(d) On receiving the information regarding the occurrence in Police Station B-Division Mardan, Fazal Rehman, A.S.I. (P.W.5) rushed to the hospital, where at 10-45 a.m., he recorded the report of Sahibzada (P.W.9) by way of Murasila (Exh.PA/1) wherein the facts mentioned above were narrated in substance. The Murasila was sent to the police station concerned where a case under section 302, P.P.C. Was registered against the accused vide F.I.R. No.128 (Exh.PA).
(e) The said A.S.I. Prepared the injury sheet (Exh. PJ) and the inquest report (Exh. PR) in respect of the deceased. Sultan Shah Sub-- Inspector (P.W.12) while posted as Sub-Inspector/Incharge of Police Post Garhikapura happened to be present in the hospital where Murasila was scribed, and therefore, proceeded to the scene of occurrence. During the spot inspection, the S.I. Recovered an empty of 30 bore (Exh.Pl) freshly discharged vide recovery memo. (Exh.PC). He sealed the same into a parcel in the presence of the attesting witnesses, Gulli Saidbar (P.W.3) and Shamroz Khan son of Izat Shah. He also recovered a plastic bag (Exh.P2) containing therein two pieces of cloth vide recovery memo. Exh.PD and sealed the same in a parcel in the presence of the same attesting witnesses. Vide recovery memo. Exh.PE. The S.I. Took into his possession one wooden chair Exh.P8. In the meantime Khalid F.C. No.911 (P.W.1) brought a blood-stained shirt (Exh.P3), trousers (Exh.P4) and Jacket (Exh.P5) belonging to the deceased which were given to him by the doctor and produced the same before S.I. Sultan Shah (P.W.12). He took all these articles into possession vide recovery memo. Exh.PF and sealed the same into a parcel. He also prepared site plan Exh.PB.
(f) The Sub-Inspector searched for the accused but the accused was not traceable. As a consequence thereof, search warrant (Exh.P.W.4/1) was entrusted to Safdar F.C. No.1223 (P.W.4) in respect of the accused. The same was returned un-served. The S.I. Then moved for proclamation (Exh.P.W.4/2) under sections 87 and 88, Cr.P.C. Against the accused. The same also proved abortive/unsuccessful. The local police then submitted the challan under section 512, Cr.P.C.
Against the accused in the Court of Ilaqa Magistrate who recorded the statements of A.I Gohar (P.W.10) and his son Gohar under section 164, Cr.P.C.
(g) The accused remained an outlaw/fugitive for a considerable long time and, at long last, was arrested by the local police of Nowshera which transferred him to P.S. B-Division, Mardan in connection with a case registered vide F.I.R. No.266 dated 20-12-1985 under section 13, A.O./216, P.P.C./5 Explosive Act and was lodged in District Jail, Mardan. In point of fact, the accused was arrested on 18-12-1985 in connection with a theft case registered against him by Kaloo Khan Police Station vide F.I.R. No.339 dated 28-7-1985. In the said theft case, S.I. Shamshad Khan (P.W.8) had obtained the police custody of the accused till 21-12-1985.
(h) However, the accused was arrested m the instant case on 24-12-1985and as a result of interrogation, he led the S.I. To a mosque from where, at his pointation, a .30 bore pistol (Exh.P6) was recovered, the same was put in a sealed parcel in the presence of A.S.I. Mohabat Shah Khan P.W.6, Police Station Shah Baz Garhi vide recovery and pointation memo. Exh.PG. The Sub-Inspector also prepared a site plan (Exh.PG/1) of place of recovery. He thereafter sent the pistol (Exh.P6) to arms expert to whom empty had already been despatched. On examination, the arms expert found empty (Exh.Pl) wedded with pistol (Exh.P6) vide his report (Exh. PN). On completion of the investigation described in the above manner, the local police submitted a charge-sheet under section 302, P.P.C. To the Court of Additional Sessions Judge for trial.
3. At the trial the accused pleaded not guilty to the charge, claimed innocence and repudiated/denied the prosecution's allegations. He contended that the case against him was the result of the ill-will of the complainant party against his family members. The accused did not take any specific plea nor did he produce any evidence in his defence. The prosecution, in order to establish its case, produced and relied upon as many as twelve witnesses, almost all mentioned above.
4. On conclusion of trial, the learned trial Judge acquitted the accused by his judgment dated 25- 6-1988. Feeling aggrieved of that decision, the State through Advocate-General has filed the present appeal which has been admitted for reappraisal of evidence.
5. The evidence produced by the prosecution was discarded by the learned trial Judge on the following grounds:---
(a) The occurrence had taken place long before the time as is mentioned in the F.I.R. There is, therefore, unexplained delay in matter of lodging the report and that non-recovery of blood puts a thick cloud on the venue/place of occurrence as well.
(b) Both the eye-witnesses Sahibzada (P.W.9) and A.I Gohar (P.W.10) are closely related inter se as well as with the deceased and are shop--keepers at Mardan and, therefore, there was no possibility of their coming to the shop of the deceased on the eventful day.
(c) The version given by both the eye-witnesses is contradictory with regard to their arrival at the spot, the manner of their squatting in the shop, the mode/manner of the accused getting the cloth from the deceased. These contradictions created doubts in the mind of the trial Judge about the presence of the eye-witnesses at the relevant time.
(d) The recovery of the pistol (Exh.P6) is unreliable because no person from locality was associated therewith and thus the provisions of section 103, Cr.P.C. Have been violated, thereby rendering the recovery legally vitiated.
6. Barrister K.G. Sabir, Advocate, the learned counsel for the accused, supporting/maintaining the judgment of the lower Court, which is the subject-- matter of this appeal, has reiterated and urged the same points on which the acquittal has proceeded
7. On the other hand Mr. Khalid Khan, Advocate, the learned counsel for the State, vehemently contended that the present occurrence, backed by the promptly lodged report, is of broad daylight occurrence and, therefore, the question of mistaken identity of the accused/culprit does not arise, that it is also supported by medical evidence as well as direct testimony of two unbiased eye- witnesses i.e., Sahibzada (P.W.9) and A.I Gohar (P.W.10), whose presence at the time and place of occurrence was both probable and natural. He further contended that the accused had strong motive to kill the deceased and his long abscondence immediately after the occurrence/incident further tends to establish his guilt beyond reasonable doubt. And lastly, the learned counsel for the State submitted that the recovery of pistol (Exh.P6) at the pointation of the accused and the report of the arms expert that the empty (Exh. Pl) recovered from the spot soon after the occurrence was fired from the pistol (Exh.P6) leaves no one in the region of doubt that only the accused and none else has committed the crime/offence with which he is charged.
8. After taking into consideration the view points of the prosecution and the defence, the question for determination is as to which of the rival position is worthy of acceptance. This, therefore, requires to be answered with reference to the evidence on record. Indeed, for evaluating and weighing evidence there can be no specific and defined formula and no generalization is possible in such matters. Each case has to be decided on its own merits features (Noor Ilahi v. The State PLD 1966 SC 708 at page 713 cite E) and each witness has his own springs of conduct, depending upon, as it does, on his power of observation, temperament, retention of memory and his capacity to reproduce the various events enacted within his sight.
9. It is not denied by Sahibzada (P.W.9) that the deceased was his brother-in-law and that his niece is married to A.I Gohar (P.W.10). Being close relatives inter se and of the deceased, these eye- witnesses would normally be most reluctant to spare the real culprit and involve/substitute an innocent person for no obvious reasons. The testimony of the close relatives cannot be brushed aside on the ground of relationship alone. It is a common experience that it could be the relatives alone who were expected to be in the company of the deceased or who could reach soon after the occurrence on hearing the uproar. Strangers or outsiders, except for the customers, had no reason to be present in the shop of the deceased at the critical time of occurrence. In this context, two important considerations are:---
(a) Whether in the instant case it was possible for the eye-witnesses to be present at the scene of occurrence and their explanation for their presence at the scene of occurrence can be accepted, and
(b) whether there is anything in their evidence which is inherently improbable or unreliable..
10. In this view of the matter it is not only difficult but impossible for us to accept or follow the reasoning advanced by the Additional Sessions Judge.
11. While in the witness-box, Sahibzada (P.W.9) has deposed that during the days of occurrence he used to run a shop of general store adjacent to the shop of the deceased. In cross-examination, it has been brought on record that his shop was the third on the north of the shop of deceased, that a godown belonging to him and a shop of Madarullah are situated between his shop and that of the deceased, that his other shop is located on opposite path of his shop towards north where a thoroughfare is running east-west. In this way, the confirmation of the shop of the witness close to that of deceased does not suffer from element of oddity and is quite natural. He has also made a reference to the presence of A.I Gohar (P.W.10) in the shop of the deceased. This A.I Gohar runs his business in Mardan and, on his own accord/showing, had gone to deceased to lend him money for purchase of cloth. It has been extracted from him, during cross-examination, that he and the deceased used to give money to each other. And keep account of the same, that even prior to the occurrence there has been exchange of money between them. Accordingly there is reasonable explanation for this witness to have gone to the shop (scene of occurrence) for the purpose of paying/lending money required by the deceased. Needless to mention that such a transaction is quite a normal practice between the business community. This witness, in the circumstances of this case, cannot, therefore, be termed as a chance witness.
12. Both the eye-witnesses stated on oath that while they were present in the shop of the deceased at 10 a.m. The accused arrived there and asked for cloth of two suits, which was cut and placed in a plastic bag but the accused did not hand over the pieces of cloth to the accused as the accused had demanded the same on credit, which was however, declined by the deceased. It was then that the accused took out a pistol, fired a shot at the deceased (sitting on chair) and fell him on the ground. This version of the two P.Ws. Is fully substantiated/supported by great number of circumstances, standing out amongst those are: Firstly, these witnesses on the day of occurrence at once put the deceased in injured condition on cot, then placed him in a Datsun and drove him to Civil Hospital, Mardan, where he was medically examined by Dr. Muhammad Tahir (P.W.11). The duration of injury as given by the doctor was of about 15 minutes to half an hour from the, time of examination at 10-40 a.m. In other words the deceased was injured between 10-25 a.m. And 10-05 a.m. This life of injury was not at all challenged by the defence. It is, therefore, clearly in conformity with the version of the eye- witnesses that the deceased was fired at 10-00 a.m. While they were present in his shop. This inference cannot be set at naught by an insignificant circumstance as to which of the two, witnesses came first to the deceased's shop and how and in what manner they were seated in the shop prior to the time of fateful occurrence. The deceased, however, expired thereafter in Surgical Ward and autopsy was conducted by the same doctor at 10-40 a.m. And confirmed the fire-arm inlet wound with corresponding exit wound and also the duration of injury and death as stated earlier. The report of Sahibzada (P.W.9) was recorded in the hospital by A.S.I. Fazal Rehman (P.W.5) at 10-45 a.m. While S.I. Sultan Shah (P.W.12) was also present there. The report, in this case, was thus made within 45 minutes of the occurrence. S.I. Sultan Shah (P.W.12) has stated that after recording of the Murasila by A.S.I. Fazal Rehman (P.W.5) he left for the spot. In the presence of medical reports and positive evidence of both these official witnesses (police officials) the concessional statement of F.C. Khalid (P.W.1) that he reached the spot in the company of Investigating Officer (P.W.12) at 9- 45 a.m. Becomes highly doubtful and incredible. Therefore, it cannot be made a basis for reasoning that the occurrence took place much earlier or long before the time as mentioned in the F.I.R. We are, therefore, of the considered view that the report lodged by the informant (P.W.9) did not suffer from delay or deliberation. It must be stated here that the deceased had received injuries of heart and kidney, which were extremely dangerous to his life, and accordingly it should be borne in mind that in such circumstances, the normal course of human conduct is to rush to the hospital in the first instance to save the life of injured person. Medical treatment of the injured always takes precedence over lodging of the report. In our opinion, there was nothing unusual in the conduct of the complainant in removing the injured to the hospital for medical treatment in the first instance, where he was afforded medical help-treatment at 10-40 a.m. i.e. Within half an hour. This was due to the efforts of Sahibzada (P.W.9) and his companions. This furnishes inherent proof of the fact that both the eye-witnesses were present at the time of occurrence and that the report was lodged without any loss of time soon after the death of the deceased and on the arrival of A.S.I.
Fazal Rehman (P.W.5). This fact alone leaves no room for fabrication of a. Story or substituting or falsely implicating the accused for the real culprit. A report in such circumstances, therefore; provides a firm foundation for the prosecution case.
Secondly, the allegation of the eye-witnesses to the effect that accused demanded cloth for two suits is fully supported/backed by the recovery of the plastic bag, containing the cut cloth for two suits, from the shop of the deceased. Even the chair was also taken into possession which, too, confirmed the version of the eye-witnesses that the deceased was sitting when he was shot by the accused. The non-recovery of the blood from the spot, as alleged by the defence, cannot be stretched to the extent that the occurrence did not take place in the shop and the prosecution story stands demolished thus. The nature and location of the injuries is such that the possibility of the blood having been absorbed in the clothes worn by the deceased cannot be excluded or ruled out.
Thirdly, only one pistol shot was alleged to be fired by the eye-witnesses and this fact stands confirmed fully by the medical evidence which shows that there was only one inlet wound.
Fourthly, the empty (Exh.Pl) recovered from the scene of occurrence is wedded with the pistol (Exh.P6). Recovered at the instance and pointation from a mosque soon after the arrest of the accused. In this connection, the report of the arms expert (Exh.PN) is crystal clear and supports the version of the eye-witnesses that the deceased was shot with a pistol of .30 bore. The version given by the eye-witnesses, therefore, stands corroborated by independent sources i.e. Statements of other material witnesses, medical reports, recoveries and report from the arms expert. The contention that no person of the locality was associated with the search and recovery of pistol (Exh.P6) by the S.1. (P.W.8) thereby making the recovery unreliable cannot be accepted. It is because P.W.8 has admitted in cross-examination that no person from the locality was present near the place from where the pistol was recovered and that none of the persons on way, when requested, showed his willingness to witness the recovery. There is no denying of the fact that nowa--days the respectable and independent persons of the locality are chary to become party to the search of the premises to avoid the wrath and incur the enmity of the offenders. They are also reluctant to depose against the offenders and to secure their conviction. Thus, taking into consideration the overall prevailing apathy of general public, a notion has become a rule; though not of universal application, that police/public officials are as good witnesses as any from the public provided no motive or enmity is alleged and proved against them. In the case in hand no animosity has been alleged or established in this regard and therefore we find no violation of section 103, Cr.P.C.
13. Last but not the least, this being the case of single accused, substitution of an innocent person for the real culprit is, therefore, highly improbable. The eye-witnesses have no enmity whatsoever or ill-will against the accused nor have they any ulterior motive to charge him falsely for an offence which is punishable with death/life imprisonment. On the other hand, the accused had a motive to kill because the deceased had refused to give him cloth on credit. His subsequent long and unexplained abscondence after the murder is a pointer to his guilt. Needless to mention that this also provides an important corroborative piece of evidence of eye-witnesses on showing the conduct of the accused after the occurrence. Such conduct is not to be ignored under any law or principle relating to administration of justice in criminal cases. Even during his absconsion the accused has committed other crimes as has been highlighted by the defence itself in the cross- examination. All these factors have escaped the attention of the-trial Judge although the prosecution story stood established at every step by credible evidence. The presumption of innocence drawn by the trial judge from the abovementioned facts does not bear detailed scrutiny of record but is based on wilful misreading of evidence.
14. We have noted that the contradictions referred to in the impugned judgment are not really inconsistencies of nature which could shake the evidentiary value of the version. Given by the eye- witnesses. There were only minor lapses which usually occur when statements are recorded long after the occurrence or incident.
15. Thus from whichever angle or point of view the matter is looked into, it leads to the conclusion that the accused has committed the murder and that his guilt is proved to the hilt. The impugned judgment is a result of erroneous and unreasonable line of reasoning, and therefore, merits interference by this Court to erase the effect of miscarriage of justice.
16. As a result, the judgment of the Additional Sessions Judge is set aside and we convict the accused for the offence of murder under section 302, P.P.C. And sentence him to undergo life imprisonment. He is also sentenced to pay a fine of Rs.20,000 or in default thereof to undergo further R.I. For one year. He is also directed to pay compensation of Rs.1,00,000 (one lac) to the heirs of the deceased under section 544-A, Cr.P.C. And in default of payment, he will suffer further imprisonment for a period of six months, in addition to the mode of recovery prescribed in the section itself. The accused is present in the Court and taken into custody and shall be sent to Central Jail, Peshawar.